State ex rel. Danforth v. Ruff
| Decision Date | 17 January 1893 |
| Docket Number | 603 |
| Citation | 33 N.E. 124,6 Ind.App. 38 |
| Parties | STATE, EX REL. DANFORTH, v. RUFF ET AL |
| Court | Indiana Appellate Court |
From the Pulaski Circuit Court.
Judgment reversed.
J. C Nye and R. A. Nye, for appellant.
W Spangler and Spangler, for appellees.
This was an action on the official bond of the appellee, Lawrence Ruff, as sheriff of Pulaski county.
Judgment was rendered in the court below on the 27th day of February 1891.
On the 22d day of February, 1892, a notice in writing was duly served on and accepted by counsel for appellees, which notice, omitting title of the cause and signatures, is in the language following:
"The defendants in the above entitled cause are hereby notified that the plaintiff will appeal to the Appellate Court of the State of Indiana, from the judgment rendered against her in this action, by said Circuit Court, on the 27th of February, 1891."
A notice in substance and effect the same, properly addressed to the clerk of the Pulaski Circuit Court, was, on the same day, served upon and accepted by the clerk.
The transcript of the record, including assignment of errors and said notices, were filed herein on appeal February 23d, 1892.
On the 13th day of September, 1892, the appellees entered a special appearance and moved the court to dismiss the appeal.
Counsel for appellees contend that the transcript must first be filed "and, after it is filed, give notice within the year that it has been filed"; and, further, the notice must be that an appeal has been taken, and not that an appeal will be taken.
The appeal was taken under the first clause in section 640, R. S. 1881, which reads as follows:
"After the close of the term at which the judgment is rendered, an appeal may be taken by the service of a notice in writing on the adverse party or his attorney, and also on the clerk of the court in which the proceedings were had, stating the appeal from the judgment or some specific part thereof."
It was evidently contemplated under this section that the notice provided for in that part of the section quoted might be given prior to the filing of the transcript in the office of the clerk of the Supreme Court.
When the sections relating to appeals are, as they must be, construed together, it is clear that an appeal may be taken in the manner adopted in this case. Section 633, R. S. 1881; Johnson v. Stephenson, 104 Ind. 368, 4 N.E. 46; Rule 2, Appellate Court.
The transcript must, under the rule of the court, be filed within sixty days after the notices are given, and, in any event, this must all be done within one year after the judgment is rendered. It has been held that the appeal is taken when the transcript is filed. Harshman v. Armstrong, 43 Ind. 126 (128).
The rule of the court and the statute were both complied with in this case, unless the notices were insufficient. The statute does not give any form, or prescribe what words shall be used in the notices. All that the statute requires is that the party who desires to appeal shall give notice "stating the appeal."
Our conclusion is that the notices given in this case are a substantial compliance with the statute, and, therefore, the motion to dismiss the appeal is overruled.
The appellee, on the 13th day of September, 1892, also filed a motion, supported by affidavits, to enjoin the appellant from prosecuting this appeal. It is alleged in the affidavits, and they are not controverted, that in February, 1891, the said Martha J. Danforth, relatrix herein, claiming to own the real estate, two hundred acres, described in the pleadings, rented the same to one Byers, and received the rent therefor for that year, amounting to not less than one hundred and seventy-five dollars.
Counsel for appellee insist--under the facts disclosed in the affidavits, in addition to the other facts shown in the record--that appellant should not be allowed to prosecute the appeal.
It does not appear that any notice of the application for injunction has been given appellant, and for that reason--if the grounds on which it is based were otherwise sufficient, which we do not decide--the relief asked is denied.
The action was commenced on the 13th day of May, 1890.
The material averments in the complaint are that on the 5th day of October, 1889, one Huddleston recovered a judgment against John E. Meeks and A. J. Danforth for fifty-two dollars and ninety-seven cents and costs, and also a decree against said Meeks and the relatrix, Martha J. Danforth, ordering the sale of certain real estate to satisfy said judgment, and that the surplus, if any, realized from said sale should be paid into court for the use of whoever might be entitled thereto. It is alleged that appellee Ruff, as sheriff, duly sold said real estate for one hundred and fifty-three dollars and seventy-three cents in excess of the amount necessary to satisfy said judgment.
It is further averred in the language of the complaint:
"That this plaintiff was, at the time said judgment was rendered, has ever since been and now is, the owner in fee simple of said real estate, and as such owner she was then and now is legally entitled to receive the surplus, and that she has demanded of said Ruff said money, and that, in violation of the duties of said office, the terms and conditions of said bond, and the order of this court, as made and contained in said judgment, he has failed and refused to pay said money to her or to the clerk of this court for her use or for the use-of any one who may be entitled to receive the same."
The appellees answered in four paragraphs. The first paragraph was withdrawn; a demurrer was sustained to the second and overruled to the third and fourth. The case was tried by the court and resulted in a finding and judgment for the appellees.
The only error discussed by counsel for appellant is the overruling of the motion for a new trial. The other errors assigned are waived, by reason of the failure to discuss them. Mahoney v. Gano, 2 Ind.App. 107, 27 N.E. 315.
There is no controversy relative to the facts in this case. All the facts alleged either in the complaint or answer were established by uncontroverted evidence or were admitted by the parties.
Without setting out the pleadings in detail, but in order to understand the question discussed by counsel, we recapitulate the facts which give rise to the controversy.
It appears that on the 16th day of October, 1888, John E. Meeks, who was then the owner of the real estate hereinbefore mentioned, became indebted to Henry L. White in the sum of one hundred and thirty-seven dollars, for which judgment was afterwards rendered, a transcript of which was filed in the clerk's office November 15th, 1889, and on which execution was issued to the appellee Ruff, as sheriff, on the 18th day of December, 1889. On the 27th day of September, 1888, said Meeks, who is the son of the relatrix, became indebted to said Huddleston.
On the 26th day of October, 1888, and prior to the rendition of the White judgment, said John E. Meeks conveyed the real estate to the relatrix.
On the 26th day of December, 1888, said Huddleston instituted suit against said relatrix and Meeks to recover judgment on his debt, and to set aside said conveyance of the real estate on the ground, as therein alleged, that the same had been executed to and accepted by said Martha J. Danforth, for the fraudulent purpose and "intent of aiding, abetting and assisting him, the said John E. Meeks, to defraud and delay his creditors," and that the conveyance was wholly without any consideration whatever.
Afterwards, on October 5th, 1889, judgment was rendered on default for fifty-two dollars and ninety-seven cents and costs, and that "the averments of his complaint are true as alleged," and that said conveyance of said real estate should be set aside, and that the amount due the plaintiff was a lien on said real estate, and it was decreed that said real estate should be sold to pay said debt, and "the overplus, if any, to be paid to this court for the use of the defendant, or whoever may be entitled to receive the same."
On the 28th day of December, 1889, in pursuance of a certified copy of said decree, the sheriff proceeded to sell said real estate to said Henry L. White on a bid of two hundred and forty-six dollars, and that said White paid the sheriff twenty-seven dollars and ninety cents costs, and that said...
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